State v. Hines

Greene, J. This case involves a joint criminal trial of two codefendants. The Circuit Court for Baltimore City denied Respondent Tevin Hines’ motion for a severance in the trial of State v. Dorrien Allen (“Allen”) and Tevin Hines (“Hines”). Hines argues that this was error because he was prejudiced by the admission into evidence of a statement made by Allen, which was inadmissible against Hines. At issue in this case is a question that this Court has never squarely addressed: the application of the offense joinder analysis set forth in McKnight v. State, 280 Md. 604, 612 , 375 A.2d 551, 556 (1977) in the context of defendant joinder.

We agree with Petitioner, the State of Maryland, that generally, where most of the evidence admissible at trial is mutually admissible, a joinder of defendants will be proper. However, where joinder will result in prejudice to one or more defendants, a trial judge has discretion under Maryland Rule 4-253 to grant a severance or order other relief as justice requires. Here, where non-mutually admissible evidence was actually admitted during a joint jury trial of codefendants and from the admission of that evidence, the objecting defendant was prejudiced, the trial judge abused his discretion in denying a severance. Because the statement that is inadmissible against Hines implicated him and therefore caused him to suffer unfair prejudice from the joinder, the trial court committed reversible error in denying the motion for severance and a new trial is warranted.

FACTUAL AND PROCEDURAL BACKGROUND On January 15, 2013, Brandon Gadsby and Michelle Adrian drove from Frederick County to Baltimore City to purchase heroin. Gadsby drove down Edmondson Avenue and the sur ³⁵⁶ rounding residential streets of West Baltimore until two young men, one in an orange jacket and another in a black beanie, waived Gadsby down. Gadsby later identified the men as Dorrien Allen and Tevin Hines. Gadsby testified that he pulled his truck over to the side of the street and Hines and Allen approached the vehicle and asked Gadsby, “Boy or Girl” meaning heroin or cocaine.

Gadsby indicated that he wished to purchase heroin. According to Gadsby, Hines told Allen that he would meet him “over” there. Allen then got into Gadsby’s vehicle and directed Gadsby to the 3900 block of Mulberry Street. When Gadsby parked his vehicle in a lot adjacent to a cemetery, Allen exited the vehicle and disappeared from view into a nearby alley.

Allen then returned with Hines, but Hines remained in the alley while Allen walked over to Gadsby’s vehicle. Gadsby testified to hearing Hines tell Allen, “not yet, not yet”, apparently referring to the fact that a garbage worker was nearby. After the garbage worker was out of sight, Allen pulled out a handgun and said, “don’t fuckin’ move.” Gadsby testified that he reached for his keys to start his truck and that Allen said, “are you trying to die?”, and then fired a gunshot that shattered the driver’s side window. Gadsby said he then held out the $120 he intended to use to purchase heroin and told Allen to take whatever he wanted.

Allen grabbed the money, exited the vehicle, and fired his gun multiple times, wounding Gadsby and killing Adrian. Gadsby testified that Allen fled through a hole in the cemetery fence. On the same day as the shooting, Officer Kevin McLean of the Baltimore City Police Department was patrolling the area and saw Allen and Hines at the Normandy Food Market at approximately 9:30 a.m. Allen was wearing a bright orange jacket and Hines was dressed in black.

Officer McLean was familiar with Allen and Hines based on his experience patrolling that area. About twenty minutes later, Officer McLean drove to a nearby convenience store and saw Allen and Hines. At 10:47 a.m., Officer McLean received a radio call reporting a shooting one block from Normandy Market and two blocks from the convenience store. Officer McLean responded to the scene whereupon Gadsby told Officer McLean he was shot by ³⁵⁷ a black male wearing an orange jacket and blue jeans.

Based on this information and on the fact that Officer McLean had seen Allen in the area earlier, he radioed that Dorrien Allen was a possible suspect. Later on the same day, police saw Allen on the street and detained him for questioning. Allen was questioned by Detectives Fuller and Carew. This interview was recorded and offered as evidence by the State at trial.

In the statement, Allen told police that on the day of the shooting, he remained home until around midday when he went to record a music video at his friend “Mike’s” house. According to Allen’s statement to the police, he did not know “Mike’s” real name. Allen told police that “Mike” lives on the 300 block of Lyndhurst Avenue. The detectives then showed Allen a surveillance video of Allen at the convenience store during the time at which he claimed to have been home.

The video, which was also shown to the jury at trial, shows Allen with a man who is clearly Hines. Allen admitted to detectives that he was in the video but claimed to not know who Hines was. Throughout the recorded interview, the detectives made statements of disbelief as to Allen’s version of the events that took place on that day. 1 Evidence was also admitted at trial that established Hines’ address was 301 Lyndhurst Avenue. Motion to Sever Hines made a pretrial motion for severance, arguing that introduction of Allen’s recorded statement would prejudice Hines.

At the pretrial motions hearing, counsel for Hines articulated to the trial judge the exact prejudice that would— and did—ensue from the admission of Allen’s statement at a joint trial: MR. SMITH [Defense Counsel]: Your Honor, I think that Mr. Hines’ case should be severed partially because of the statement ... the main part of the statement is, all of the commentary by the detectives about what they know, accus ³⁵⁸ ing Mr. Allen of you’re lying, we know you’re lying, we know about this other person that you’re with, you’re lying about the name of the other person that you’re with, Mr. Allen saying his name is Mike. All of the commentary that we go through in this lengthy statement, and Mr. Allen’s responses, however you want to characterize them, I don’t think are at all admissible against Mr. Hines. [[Image here]] The other issue is I don’t anticipate any ability to cross-examine Mr. Allen about any of his answers much less the ones regarding the accusations made by the detectives, we know you’re lying Mr. Allen, we know that you’re not telling us about the other person, we know who that other person is, that implication there, and we know you’re lying about it, and it’s not Mike and we know who it is. Well, the only inference that can be drawn at that point is that it’s Mr. Hines and that Mr. Allen is lying about it— [[Image here]] THE COURT: Do they, at that point when they interview Mr.— MR.

NASH [Prosecutor]: They know it’s Tevin Hines, Your Honor. THE COURT: —Allen, they know who Hines is? MR. SMITH: Yes.

MR. NASH: Yes. MR. SMITH: They’re trying to get him to say it’s Tevin Hines, isn’t it, and he’s saying no, it’s Mike, I don’t know, I don’t wear an orange jacket.

THE COURT: I am amazed they didn’t say but we know that [sic] Tevin Hines. I’m surprised, I was really interpreting it the other way. MR. SMITH: No, they knew who they—they had seen the video from whatever, the first store, you heard them talk about the 9:25 or whatever time it was where they were asking Mr. Allen, we know you couldn’t have gotten up at noon because we saw you at the store at 9:25 and we saw you with the other guy and we know who that other guy is, ³⁵⁹ and they know who it was, and they were trying to get him to say it’s Tevin Hines, and they’re trying to get him to say all that and that’s why in this situation, Your Honor, I understand it’s not—they didn’t use the word Tevin Hines, but the testimony of Mr. Gadsby in this case that will come out, is that there were only two people involved at the drug deal.

This wasn’t something you can sanitize and say well, maybe they won’t, maybe they will just think that there was nobody else, okay, maybe you can sanitize this statement, I don’t think you really can with it making any sense whatsoever for the remaining parties, or the whole implication in this commentary by the detectives which is the problem with not just asking questions, making all of this commentary of we know you’re lying we know more than this, we know these answers to these questions. All of that when I don’t get to ask Mr. Allen any questions, I don’t get to really cross-examine, you know, fully this statement and then have to say well, ladies and gentlemen, that has—the Court has to then say well, ladies and gentlemen, only use those accusations of lying against Mr. Allen and only use these little bits of answers against Mr. Allen, and don’t consider that as to Mr. Hines. I think Your Honor is [sic] very dangerous and doesn’t give Mr. Hines the ability to have full and fair cross examination, confrontation, and a full and fair trial. And I think the way to cure that, obviously, is to sever his case because then we wouldn’t play Mr. Allen’s statement at all, it wouldn’t be relevant, and it certainly wouldn’t be admissible against Mr. Hines in a separate trial[.] [[Image here]] THE COURT: Nothing in the statements the police made to Mr. Allen suggests that there’s a second person involved in the crime, do they?

MR. SMITH: Yes, they do. They don’t come out and say we know that there was a lookout, but the point is, Judge, the jury is going to get to hear all of that in the trial and they’re going to say okay, now, let’s play Mr. Allen’s statement and ³⁶⁰ the inference is going to be obviously all of these accusations are going to be well, that was Mr. Allen doing whatever, lying, not being honest, whatever word you want to use, and trying to hide the fact that the police who they believe it is Mr. Hines, is the co-perpetrator of all of these events that happened in the back alley of 3900. And it’s not simple—the bigger, to me, one of the biggest problem [sic] is it’s not a question and answer scenario and there’s all of these accusations against Mr. Allen but they are essentially imputed in a way to [sic] it’s got to be Hines, we know who it is, it’s got to be the co-defendant.

Because they’re not going to hear that there were three people involved other places, or four people, maybe it could have been somebody else that Mr. Allen is talking about. It can only be Mr. Hines that is being talked about because that’s who they were trying to get him to talk about at the time. And I think it’s just impossible to parse out anything from this statement that is mutually admissible, and I think the safer and more fair way to proceed is to allow the State to use whatever they choose to use and Mr. Scott and the State and the Court decide the appropriate redacted statement as to Mr. Allen in his trial. But to have and allow and essentially force Mr. Hines to have to sit here, not be able to cross-examine Mr. Allen about it, is unfair.

(emphasis added). In response to defense counsel’s motion for severance, the prosecutor made the following argument at the motions hearing: MR. NASH: Your Honor, so when we are talking about a severance, it’s under Rule, I am sorry, 4-253(a), appealing to case law, Stevenson [v. State] 43 MD App.[Md.App.] 120 [ 403 A.2d 812 (1979)], joinder dictates—is dictated when most of the evidence at trial is admissible. In this case, almost all the evidence, all the witnesses are going to be the same.

So what we’re talking about, it sounds like counsel brought up two issues, hearsay and 6th and the 14th amendment, confrontation issue. Hearsay is not a reason to sever. Now, what we commonly refer to as Bruton can be, but we ³⁶¹ have to have a Bruton issues [sic], in other words, we have to have a statement that expressly identifies the defendant as the—or the co-defendant as engaging in criminal conduct and frankly, Your Honor, we don’t have that here. So let’s start with the argument that while there’s other evidence in the case and if they take some things said in the statement, then they can link it to other evidence in the case and figure out that at times.

Well, if we look at Richardson v. Marsh, that’s 21[481] U.S. 200 [ 107 S.Ct. 1702 ], in a statement where the co-defendant doesn’t name the defendant, even though there might be evidence in the confession, that’s linked to other evidence in the trial, that’s what Richardson v. Marsh says, that that is not reason to sever due to confrontation. The bigger problem with counsel’s argument is, is that the defendant, Mr. Allen, never says anywhere in any part of the statement, anything that implicates Mr. Hines and that’s exactly what Bruton is supposed to protect one from. Even if we were to go out on a limb and say that there’s something that the detective said, which clearly isn’t— wouldn’t be accurate either, because they never mentioned Mr. Hines [sic] name, but even if it was something the detective said, well, the detective can take the stand and they can cross-examine the detective. But Mr. Allen never says anything even remotely linking Mr. Hines to the crime.

As a matter of fact, he’s trying to save Mr. Hines and repeats over and over again, I don’t know who you’re talking about, what you’re talking about, I don’t know that guy. The closest we get is that I got some change from him or he gave me some change, one or the other. So, Your Honor, there is no reason to sever, there’s no confrontation issue, but even if there were, the case law would—there is some of the case law that says that if Your Honor finds something (inaudible) in the confession of Mr. Allen that Your Honor has decided, even though (inaudible) could—should be kept out, we can simply redact that and ³⁶² we can move on with the case, with the co-defendants tried together. (emphasis added).

There is no dispute that the statement would have been inadmissible hearsay in a trial had Hines been tried separately from Allen. 2 However, the parties were in disagreement as to whether the statement would prejudice Hines. The trial court ruled that part of Allen’s statement was admissible and denied the motion, stating “All right. If those matters were taken out, I don’t think that the statement can even inferentially be pointing a finger at Mr. Hicks [sic] and I would deny the motion for severance.” The trial judge admitted the statement, subject to a limiting instruction to the jury that the statement was only evidence against Allen and was not to be considered against Hines. 3 Statement Admitted in the State’s Case in Chief The following portions of Allen’s statement were admitted in the State’s case in chief and played at trial for the jury: DETECTIVE CAREW: Okay. All right.

So you’re saying that you did not leave your house until 12:00 noon? MR. ALLEN: Yes. DETECTIVE CAREW: Okay.

Where did you go? MR. ALLEN: I went to the studio. DETECTIVE CAREW: You went right to the studio?

MR. ALLEN: Yeah, I had in my mind I was going there, so I was ready to hit. ³⁶³ DETECTIVE CAEEW: You went right from 639 Yale Avenue [Dorrien Allen’s residence] right to— MR. ALLEN: Lyndhurst. DETECTIVE CAREW: To Lyndhurst.

What address on Lyndhurst? MR. ALLEN: I don’t know the address on Lyndhurst, I know it’s like the 300 block. DETECTIVE CAREW: 300 block of Lyndhurst.

And who lives there? MR. ALLEN: I know Mike live there and like I know he probably got the rest of the family household, I don’t really pay attention. [[Image here]] DETECTIVE CAREW: All right. So what time did you get to that house, the studio at the 300 block of Lyndhurst?

MR. ALLEN: I don’t know the time I got to the house, probably, I don’t know, it’s probably, you know, cuz by the time I was—I was probably getting to his house, I don’t know what time it probably was, I don’t know, it was probably going on 1:00 something, I don’t know. DETECTIVE CAREW: And who did you see at the house? MR.

ALLEN: What you mean who did I see at the house? DETECTIVE CAREW: When you went to the studio, who did you talk to or— MR. ALLEN: I was talking to Mike. DETECTIVE CAREW: Mike.

MR. ALLEN: Me and Mike was the only one[s] in there at the time, that’s why me and him had left out and went to the store and that’s how the officer had grabbed me, I was with Mike. DETECTIVE CAREW: Oh, when the officer grabbed you, you were with Mike? MR.

ALLEN: Yes. DETECTIVE CAREW: What is Mike’s real name? MR. ALLEN: I don’t know his real name. ³⁶⁴ DETECTIVE CAREW: All right.

So that’s all you did for the entire day. You left at noon, you went to Lyndhurst and then you came outside and the officers grabbed you? MR. ALLEN: Yeah, we was going to the store and— DETECTIVE CAREW: What store were you going to?

MR. ALLEN: We was going to walk around to Normandy. [[Image here]] DETECTIVE CAREW: Well, we have video that shows and the jacket and your face and you will get to see that at some point, but trust me that that’s the ease, and we knew where to go back to get the video because the officer saw you up there earlier and went in the store and he told us to go look, and we went and looked and there you were, but you weren’t alone, you also had a friend with you. Who is the friend with you? MR.

ALLEN: The only person I was out there with was Mike, sir, DETECTIVE CAREW: That’s a lie. All right. In order for you to help yourself in any way, you got to find a way to tell the truth and you are not doing that. MR.

ALLEN: I am, sir, you can’t tell me I’m not telling the truth— DETECTIVE CAREW: I can tell you the truth when I have video, when I have the officer and the officer I know is right because when we went back, we looked at the video and we downloaded the video and we have it on CD, of you and your friend, and we know who your other friend is and we know where he lives. Can you just tell us where the friend lives that was with you? MR. ALLEN: I don’t know where he lives.

DETECTIVE CAREW: Try 301 Lyndhurst. * * * (Whereupon, the taped statement was stopped in the courtroom [and Detective Fuller gave the following in-court testimony:]) ³⁶⁵ [BY PROSECUTOR]: Q. And at that part of the video, what are you guys looking at? A. [BY DETECTIVE FULLER] I’m indicating Mr. Hines on the video. Q. And before, just like 30 seconds earlier, we’re talking about where Mr. Allen is being shown the video and he identifies somebody as himself, who is he identifying? A. Mr. Allen—you can see his face clearly on the video but Mr. Allen in the video wearing the orange jacket.

Q. That’s who he identifies as himself? A. Correct. (emphasis added). The jury heard this, as well as in-court testimony by Detective Fuller that Hines lived at 301 Lyn-dhurst.

At trial, neither Hines nor Allen testified. The jury convicted Hines of first degree murder, use of a handgun in commission of a crime of violence, attempted murder, robbery with a deadly weapon, conspiracy to commit robbery with a deadly weapon, and first-degree assault. Hines noted an appeal to the Court of Special Appeals, arguing, inter alia, that the trial court erred in denying Hines’ motion to sever the codefendants’ trials. The Court of Special Appeals, in an unreported opinion, reversed the trial court’s ruling, and held that “Hines was prejudiced by having to defend himself against ... evidence that would not have been admissible had he been tried separately.” The State of Maryland filed a Petition for a writ of certiorari in this Court.

We granted certiorari State v. Hines, 446 Md. 291 , 132 A.3d 193 (2016), to answer two questions. 4 We have restated the first question for clarity: ³⁶⁶ (1) Did the trial judge err in denying a severance in accordance with Rule 4-253(c)? (2) Was any error in admitting Allen’s statement harmless? For the reasons that follow, we answer yes to question one and no to question two. Accordingly, we affirm the judgment of the Court of Special Appeals and hold that it was error for the trial judge to refuse to sever the trials and the error was not harmless.

STANDARD OF REVIEW Maryland Rule 4-253(c) specifically affords the trial court discretion in deciding a severance motion. Md. Rule 4-253 ("If it appears that any party will be prejudiced by the joinder ... the court may, on its own initiative or on motion of any party, order separate trials ... or grant any other relief as justice requires.”) (emphasis added). Ordinarily, such decisions are reviewed only for abuse of discretion. See Erman v. State, 49 Md.App. 605, 612 , 434 A.2d 1030, 1036 (1981).

In McKnight, 280 Md. at 612 , 375 A.2d at 556 , we limited the discretion afforded to a trial judge under Rule 4-253(c) and held that severance is mandated where a single defendant is jointly tried by a jury for separate offenses and evidence as to the offenses is non-mutually admissible. We explain, as discussed below, that the McKnight analysis applies in the limited context of joinder/severance of offenses. The proper standard of review when reviewing a severance determination in cases of codefendant joinder remains whether the trial court abused its discretion. DISCUSSION Legal Contentions The State argues that the Court of Special Appeals adopted an approach to joinder wherein the only test is “whether the evidence as to all defendants is mutually admissible” and this approach “would have the effect of eliminating nearly all joint trials of codefendants[.]” According to the State, the proper test is whether the introduction of non-mutually admissible ³⁶⁷ evidence is prejudicial.

The State posits, however, that the statement did not prejudice Hines because the type of prejudice to be avoided in the context of non-mutually admissible evidence in a joint trial of multiple defendants is “impairment to a particular defense,” or “undue risk of conviction on grounds unrelated to the evidence.” According to the State, even where prejudice exists, the court has discretion to curtail the prejudice by means other than severance, such as redac-tions and limiting instructions. The State argues that the trial court did not abuse its discretion because the statement was redacted to remove any references to Hines. In addition, the State contends that there was no prejudice because the judge gave a limiting instruction, and the content of the statement did not interfere with Hines’ defense of mistaken identity. The State maintains that the statement was introduced to show Allen’s consciousness of guilt because he gave a demonstrably false alibi. 5 Hines views the case differently.

He maintains that in cases involving joint defendants, the applicable rule is set forth in McKnight, 280 Md. at 612 , 375 A.2d at 556 , that where evidence is non-mutually admissible, severance is required as a matter of law. According to Hines, the trial judge erred as a matter of law in admitting Allen’s redacted statement, which is ³⁶⁸ inadmissible hearsay as to Hines. He asserts that he was prejudiced by the introduction of the statement and that the limiting instruction was insufficient to insulate him from prejudice. Hines contends that he suffered prejudice not because he was directly mentioned in the statement, but because the detectives exposed Allen’s obvious lies and conveyed to the jury that the police knew: (1) that “Mike”, who lived on the 300 block of Lyndhurst, was a fictitious person; (2) that Hines was Allen’s companion shown in the video surveillance footage; and (3) that Hines lived at 301 Lyndhurst.

Moreover, Detective Fuller testified during breaks in the playing of the recording that police knew Hines was the one in the video. Thus, Hines contends that “the unmistakable message” from the questioning and comments by the detective and from Allen’s untruthful answers was that Allen was with Hines at the time of the shooting and Allen lied about it, possibly to insulate Hines. Maryland Rule 4-253 Joinder and severance in criminal cases is governed by Maryland Rule 4-253. This Rule contemplates two distinct joinder/severance situations: defendant joinder and offense joinder.

Under Rule 4-253(a), two or more defendants can be tried together in a joint trial “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Md. Rule 4-253. Under subsection (b), upon motion of a party, a trial court may join separate but related offenses in a trial of a single defendant where the defendant “has been charged in two or more charging documents.” Id. This Rule is based on a policy favoring judicial economy and its purpose is “to save the time and expense of separate trials under the circumstances named in the Rule, if the trial court, in the exercise of its sound discretion deems a joint trial meet[ 6 ] and proper.” Lewis v. State, 235 Md. 588, 590 , 202 A.2d 370 , 371 ³⁶⁹ (1964). Finally, subsection (c), with which we are here concerned, governs “prejudicial joinder” This subsection provides: If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.

Id. This final subsection affords a trial judge discretion in making a joinder/severance determination and embodies a balancing approach between “the likely prejudice caused by the joinder ... [and] the considerations of economy and efficiency in judicial administration.” Frazier v. State, 318 Md. 597, 608 , 569 A.2d 684, 689 (1990). We recognize that the “overbearing concern of the law of this State with respect to joint or separate trials of a defendant charged with criminal offenses [is] to safeguard against potential prejudice.” Frazier, 318 Md. at 607 , 569 A.2d at 689 . Under the Rule, a trial judge has discretion in deciding how to safeguard against prejudice caused by joinder; the judge may grant a severance or “other relief as justice requires.” Md. Rule 4-253.

Maryland Courts have repeatedly held that “ ‘[prejudice’ within the meaning of Rule 4-253 is a ‘term of art,’ and refers only to prejudice resulting to the defendant from the reception of evidence that would have been inadmissible against that defendant had there been no joinder.” Galloway v. State, 371 Md. 379 , 394 n. 11, 809 A.2d 653 , 663 n. 11 (2002) (quoting Ogonowski v. State, 87 Md.App. 173, 186-87 , 589 A.2d 513, 520 (1991)) (emphasis added). Thus in exercising discretion to avoid prejudice to a defendant, the trial judge must engage in the following analysis. First, the judge must determine whether evidence that is non-mutually admissible as to multiple offenses or defendants will be introduced. Second, the trial judge must determine whether the admission of such evidence will cause unfair prejudice to the defendant who is requesting a severance.

Finally, the judge must use his or her discretion to determine ³⁷⁰ how to respond to any unfair prejudice caused by the admission of non-mutually admissible evidence. The Rule permits the judge to do so by severing the offenses or the co-defendants, or by granting other relief, such as, for example, giving a limiting instruction or redacting evidence to remove any reference to the defendant against whom it is inadmissible. The judge must exercise his or her discretion to avoid unfair prejudice. See Day v. State, 196 Md. 384, 394 , 76 A.2d 729, 733 (1950) “(While it is generally a matter of discretion with the court as to whether a separate trial shall be granted, such discretion is not to be exercised arbitrarily but so as to prevent injustice.”) (quoting People v. Patris, 360 Ill. 596 , 196 N.E. 806, 808 (1935)).

Where, as discussed below, a limiting instruction, redaction, or other relief is inadequate to cure the unfair prejudice, and severance remains the only option to avoid unfair prejudice, a denial of severance constitutes an abuse of discretion. McKnight In McKnight , this Court limited a trial judge’s discretion to join offenses in the context of a jury trial under Rule 745, the predecessor to Rule 4-253. 280 Md. at 612 , 375 A.2d at 556 . The McKnight Court held that in a jury trial, “a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible[ 7 ] at separate trials.” Id. The Court based its holding on the rationale ³⁷¹ underlying the “other crimes” evidentiary rule of exclusion.

McKnight, 280 Md. at 611 , 375 A.2d at 555 . The Court, in considering the criticisms of offense joinder, was particularly concerned with the possibility that “the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged.” McKnight, 280 Md. at 609 , 375 A.2d at 554-55 . We explained that the “other crimes” evidentiary rule is designed “to prevent prejudice to defendants” and that if the rationale behind that rule is valid, “prejudice will result from joinder wherever the [“other crimes”] rule itself is violated, even though the evidence is separable.” McKnight, 280 Md. at 611 , 375 A.2d at 555 . Consistent with the decisions pre-dating it, McKnight was decided on an abuse of discretion standard. 280 Md. at 614 , 375 A.2d at 557 .

However, McKnight has been subsequently interpreted to stand for the proposition that non-mutual admissibility of evidence as to unrelated offenses is per se prejudicial in the context of a jury trial, requiring severance as a matter of law. In Graves v. State, this Court explained: The McKnight holding took away the discretion of the trial judge presiding at a jury trial to join similar offenses where the evidence as to them was not mutually admissible. As we have indicated, in such circumstances, there was prejudice as a matter of law which compelled separate trials. The rationale underlying the McKnight holding was our concern that a jury would be unable to set aside the likely prejudice engendered by the joinder. 298 Md. 542, 545-46 , 471 A.2d 701, 702-03 (1984) (emphasis added).

See also Wieland v. State, 101 Md.App. 1, 10 , 643 A.2d 446, 450 (1994) (“[McKnight is] the case that first dramatically narrowed the range of discretion truly available to the trial judge by holding that, in a jury case at least, whenever evidence on separate charges would be mutually not admissible, severance, if timely requested, is absolutely mandated as a matter of law”) (emphasis added). In Wieland , Judge Charles E. Moylan, Jr., writing for the Court of Special ³⁷² Appeals, referred to Graves as the “definitive exegesis of the meaning of McKnight” as totally limiting the judge’s discretion. Id. Judge Moylan explained further that “[t]he nagging incongruity is that we continue to label the reason for appellate reversal on this issue not ‘legal error,’which it has become, but an ‘abuse of discretion,’ which it cannot be for there is no longer any discretion to be abused.” Wieland, 101 Md.App. at 11 , 643 A.2d at 451 .

As we discuss in this opinion, our holding in McKnight must be understood in terms of the context of that case, a joinder of offenses in a jury trial of a single defendant. Confusion in the Case Law: McKnight in the Context of Defendant Joinder Although McKnight set forth a clear standard in cases of offense joinder within the context of a jury trial, confusion as to this standard’s applicability to defendant joinder has persisted in the case law. Cases decided since McKnight , dealing with offense joinder have stated, in dieta, that the standard elucidated in McKnight applies to both offense joinder and defendant joinder. See, e.g., Solomon v. State, 101 Md.App. 331, 340 , 646 A.2d 1064, 1068 (1994) (“The first groundbreaking step taken by the McKnight decision was to hold that, in a jury trial at least, severance was absolutely mandated, as a matter of law, when the evidence with respect to the separate charges (or, presumably, with respect to separate defendants) would not be mutually admissible.

In a jury trial, on this issue no discretion remains.”). See also Conyers v. State, 345 Md. 525, 552 , 693 A.2d 781, 794 (1997) (“McKnight’s holding, technically, did not apply to multiple defendant join-der, but this Court has stated that the McKnight analysis is also the proper way to determine the propriety of multiple defendant joinder.”). Additionally, this Court has cited McKnight in the context of codefendant joinder cases. See Osburn v. State, 301 Md. 250, 254 , 482 A.2d 905, 907 (1984).

In Osburn , we wrote that McKnight set the standard for “the joinder/severance of multiple defendants or multiple charges against one defendant; the evidence offered must be ³⁷³ mutually admissible as to each defendant or as to each charge in order for joinder to be proper.” Id. See also Ogonowski, 87 Md.App. at 186-87 , 589 A.2d at 519-20 (stating that “[t]he analysis applicable to joinder and severance of defendants” is “essentially identical” to that for offense joinder and upholding denial of severance where the claims of error did “not involve evidence that would have been inadmissible in a severed trial”). Other cases have classified McKnight as applicable only in the limited context of offense joinder. Graves, 298 Md. at 545 , 471 A.2d at 702 (“The McKnight holding took away the discretion of the trial judge presiding at a jury trial to join similar offenses where the evidence as to them was not mutually admissible.”) (emphasis added).

The post-McKnight case law has thus created some confusion as to whether a finding of non-mutual admissibility of evidence in a joint defendant trial automatically entitles a defendant to a severance without